State of California (Department of Developmental Services) (International Union of Operating Engineers) (PERB 1150S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL 	UNION 	OF OPERATING
ENGINEERS, 	CRAFT-MAINTENANCE
DIVISION, 	UNIT 12,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF DEVELOPMENTAL SERVICES),
Respondent.
)
)
)
) 	Case No. S-CE-781- S
PERB Decision No. 	1150-S
May 9 , 1996
)
)
)
Appearances; 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by William
A. 	Sokol, 	Attorney, 	for International Union of Operating
Engineers, 	Craft-Maintenance Division, 	Unit 12; 	State of
California 	(Department 	of 	Personnel Administration) 	by Susan B.
Sandoval, 	Labor Relations Counsel, 	for State of California
(Department of Developmental Services).
Before Caffrey, 	Chairman; 	Garcia and Dyer, 	Members.
DECISION AND 	ORDER
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	International
Union of Operating Engineers, 	Craft Maintenance Division, 	Unit 	12
(IUOE) 	to a Board agent's dismissal 	(attached) 	of the unfair
practice 	charge. 	In the 	charge, 	IUOE had alleged that 	the State
of California 	(Department 	of Developmental 	Services) 	(DDS)
violated section 3519(a) 	and 	(c) 	of the Ralph C. 	Dills Act
(Dills Act)1 when it 	"withdrew" 	a first 	level 	response to a DDS
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519 provides, 	in pertinent part:
It 	shall 	be unlawful 	for 	the 	state 	to do any
of 	the 	following:
)
)
)

employee's 	grievance. 	The Board agent 	dismissed the 	charge 	on
the grounds 	that 	PERB had no authority to enforce 	settlement
agreements, 	nor did the 	amended charge 	establish a 	"unilateral
change" violation.
The Board has 	reviewed the unfair practice 	charge, 	the
warning and dismissal 	letters, 	IUOE's appeal, 	and DDS's
opposition 	to 	the 	appeal.2 The Board 	finds 	the 	Board agent's
(a) 	Impose or threaten to impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(c) 	Refuse or fail 	to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
2The Department of Personnel Administration 	(DPA), 	who
represented DDS 	in this 	case, 	filed a 	statement 	of 	opposition to
the appeal, 	arguing that 	the appeal 	is 	facially defective because
DPA was 	served with the 	appeal 	11 	days 	after the appeal 	was 	filed
at 	PERB. 	(The appeal was 	filed with PERB on January 8, 	1996, 	and
DPA was 	served on January 19, 	1996.)
Although 	PERB 	Regulation 	32140 	requires 	that 	service 	shall
be 	"concurrent with the 	filing 	in question," 	it provides 	no
penalty for failure 	to comply. 	Therefore, 	it 	is within the
Board's 	discretion whether 	to 	overlook this 	technical 	violation
of 	the 	regulation. 	According 	to California appellate 	case 	law,
service 	of 	process 	statutes 	should be 	liberally 	construed 	to
effectuate 	service 	if 	actual 	notice 	has 	been received by 	the
defendant, 	and the question of 	service 	should be 	resolved by
considering 	each 	situation 	from a practical 	standpoint. 	(See
Pasadena Medi-Center Associates v. 	Superior Court 	(1973)
-
9 Cal.3d 773, 	778 	[108 Cal.Rptr. 	828].) 	Furthermore, 	courts will
not presume prejudice 	simply by the passage of 	time. 	(See, 	e.g.,
Putnam v. 	Claque 	(1992) 	3 Cal.App.4th 542, 	565-566 	[5 Cal.Rptr.2d
25] 	(Putnam), 	where the court refused to imply prejudice to the
defendant 	from a mere delay in service, 	stating that prejudice
may be 	inferred 	only 	from an unjustified 	and protracted 	delay 	in
service, 	particularly when the defendant has actual knowledge of
22

dismissal 	of 	the 	charge 	to be 	free 	of prejudicial 	error and
therefore adopts 	it 	as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CE-781-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
the 	existence of 	the action. 	The purpose 	of 	this approach is 	to
eliminate unnecessary, 	time-consuming, 	and costly disputes 	over
legal 	technicalities, 	without prejudicing the 	right 	of defendants
to proper notice of 	court proceedings. 	(Hammer Collections 	Co.
v. 	Ironsides Computer Corp. 	(1985) 	172 	Cal.App.3d 899,
902 	[218 Cal.Rptr. 	627].)
Looking at 	the 	circumstances 	in the 	case at bar, 	there 	is no
evidence 	that DDS was prejudiced by the delay in service, 	since
the 	delay was 	fairly brief 	and prejudice will 	not 	be 	inferred
from delay alone 	(Putnam, 	supra)--· . 	Furthermore, 	DDS already had---·
notice 	of 	the 	existence 	of 	the 	case and 	there 	is no 	claim that
witnesses 	or 	evidence had become unavailable 	in 	the 	interim.
Under the guidance 	of 	the 	court 	cases 	discussed above, 	we decline
to hold that 	IUOE's 	delay 	in serving DDS 	is 	fatal 	to 	the appeal;
however, 	we wish to 	remind parties 	that 	Regulation 32140 	does
require 	concurrent 	service.
33

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
December 18, 	1995
William A. 	Sokol, 	Attorney-
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 	1400
Oakland, 	CA 94 612
Re: 	International Union of Operating Engineers v. 	State of
California 	(Department 	of 	Developmental 	Services)
Unfair 	Practice 	Charge No. 	S-CE-781-S
DISMISSAL 	LETTER
Dear Mr. 	Sokol:
On November 8, 	1995, 	you 	filed an unfair practice 	charge on
behalf 	of 	the 	International Union of Operating Engineers 	(IUOE),
in which you allege 	that 	the 	State 	of 	California, 	Department 	of
Developmental 	Services 	(DDS) 	violated sections 3519(a) 	and 	(c) 	of
the Ralph C. 	Dills Act. 	More 	specifically, 	you contend that 	on
July 7, 	1995, 	DDS 	"withdrew" 	a settlement of a grievance
submitted by member 	James 	Dofelmire. 	Through this 	charge 	you
seek 	to have 	PERB 	enforce 	the 	"settlement" 	that was 	reached on
June 	27, 	1995, 	when Dofelmire 	concurred with his 	supervisor's
first 	level 	of 	review 	finding 	that 	Dofelmire 	was 	working out 	of
class 	and did not 	appeal 	his 	grievance 	to 	the 	second 	level 	of
review.
I 	indicated to you, 	in my attached 	letter dated November 	21,
1995, 	that 	the 	above-referenced 	charge 	did not 	state 	a prima
facie 	case. 	You were 	advised that, 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it 	prior 	to
December 4, 	1995, 	the charge would be dismissed.
On November 29, 	1995, 	you submitted a 	letter seeking to clarify
the position of 	IUOE. 	Briefly stated, 	IUOE's argument 	is 	that
DDS 	is 	failing 	to 	abide by the 	grievance 	clause 	of 	the 	contract
and that 	said 	failure 	is 	a unilateral 	change 	in terms 	and
conditions 	of 	employment. 	You 	have 	not 	provided any 	additional
facts 	to support 	the 	charge.
As we discussed on 	the phone, 	in determining whether 	a party has
violated Dills Act 	section 3519 (c), 	PERB utilizes 	either the 	"per
se" 	or 	"totality of 	the conduct" 	test, 	depending on the 	specific
conduct 	involved 	and 	the 	effect 	of 	such 	conduct 	on 	the
negotiating process. 	(Stockton Unified School 	District 	(1980)
PERB Decision No. 	143.) 	Unilateral 	changes 	are 	considered 	"per

Dismissal 	Letter
S-CE-781-S
December 18, 	1995
Page 2
se" 	violations 	if 	certain criteria are met. 	Those 	criteria are:
(1) 	the employer 	implemented a 	change 	in policy concerning a
matter within the 	scope of 	representation, 	and 	(2) 	the 	change was
implemented before 	the 	employer 	notified 	the 	exclusive
representative 	and gave 	it 	an opportunity to request
negotiations. 	(Walnut Valley Unified School 	District 	(1981) 	PERB
Decision No. 	160; 	Grant 	Joint Unified High School 	District 	(1982)
PERB Decision No. 	196.)
As 	I 	indicated, 	the withdrawal 	of 	a 	first 	level 	review of 	a
grievance by DDS 	in this one 	instance, 	does not 	establish a
change 	in policy. 	DDS 	submitted a 	response 	to the grievance 	at
the 	second 	level 	of 	review and was 	willing 	to proceed with the
grievance. 	IUOE 	seeks 	to have 	PERB 	find that 	the 	change 	in the
grievance 	response 	is 	a unilateral 	change 	and a violation of 	a
settlement. 	The 	alleged facts 	in this 	case 	don't 	support 	that
theory. 	Therefore, 	I 	am dismissing the 	charge based on the 	facts
and reasons contained in my November 21, 	1995, 	letter.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations Board regulations, 	you
may obtain 	a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to 	the 	Board itself 	within 	twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the 	original 	and 	five 	copies
of 	such 	appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before 	the close of business 	(5 	p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure 	section 1013 	shall 	apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 95814
If you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any 	other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within 	twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32635(b).)
Service
All 	documents 	authorized to be 	filed herein must 	also 	be 	"served"
upon all parties 	to 	the proceeding, 	and a 	"proof 	of 	service"
must 	accompany 	each 	copy of 	a 	document 	served upon 	a 	party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,

Dismissal 	Letter
S-CE-781-S
December 18, 	1995
Page 3
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time, 	in which to 	file 	a 	document
with the 	Board 	itself, 	must 	be 	in writing 	and 	filed with 	the
Board at 	the 	previously noted address. 	A request 	for 	an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days 	before
the 	expiration 	of 	the 	time 	required 	for 	filing the 	document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
By Roger Smith
Board 	Agent
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Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
November 21, 1995
William A. Sokol, Attorney-
Van Bourg, Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	CA 94612
Re: 	International Union of Operating Engineers v. 	State of
California 	(Department 	of 	Developmental 	Services)
Unfair Practice Charge No. 	S-CE-781-S
WARNING 	LETTER
Dear Mr. Sokol:
On November 8, 	1995, 	you filed an unfair practice charge on
behalf of the 	International Union of Operating Engineers 	(IUOE),
in which you allege that the State of California, 	Department of
Developmental Services 	(DDS) 	violated sections 3519(a) 	and.(c) 	of
the Ralph C. 	Dills Act. 	More specifically, 	you contend that on
July 7, 	1995, 	DDS "withdrew" a settlement of a grievance
submitted by member James Dofelmire. 	Through this charge you
seek to have PERB enforce the 	"settlement" 	that was reached on
June 27, 	1995, 	when Dofelmire concurred with his supervisor's
first 	level of review finding that Dofelmire was working out of
class and not appealing to the 	second level of review of his
grievance.
The Dills Act provides at section 3514.5(b) 	that:
The board shall not have authority to enforce
agreement between the parties, 	and shall not
issue a complaint on any charge based on
alleged violation of 	such an agreement 	that
would not 	also constitute 	an unfair practice
under this chapter.
PERB Regulation 32615(a)(5) 	(codified at 	California Code of
Regulations, 	title 8, 	section 31001 et seq.) 	requires that an
unfair practice charge contain a clear and concise statement of
the 	facts to constitute an unfair practice charge. 	Your charge
fails to provide a statement of 	facts or a theory upon which an
unfair practice can be based. 	As 	I 	indicated to you in our
telephone conversation, 	without additional 	information the charge
fails to state a prima facie violation of the Dills Act.
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this letter or additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	The
---==-----==----==---

Warning Letter
S-CE-781-S
November 21, 	1995
Page 2
amended charge should be prepared on a, standard PERB unfair
practice charge 	form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be signed under penalty of perjury by the charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before December 4, 	1995, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 359.
Sincerely,
Roger Smith
Board Agent
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